SHENK, J. This is an appeal by the defendant from an order denying a motion to vacate an'order determining the amount due for child support under a final decree of divorce.
The parties married in August, 1925. They had two children, a son and a daughter. The plaintiff wife obtained in the superior court, San Diego County, an interlocutory decree of divorce from the defendant in November, 1931, and a final decree in October, 1933. She was awarded the custody of the children, who were six and five years respectively at the time of the final decree. The interlocutory and final decrees ordered payment by the defendant of the sum of $50 per month for the support of the children.
In September, 1945, the plaintiff made an ex parte application in the same court for an order directing the defendant to pay $2,925 support money. Her affidavit showed that $8,175 had become due, that $3,868 had been paid by the defendant, leaving the sum of $4,307 unpaid. However, she sought only $2,925, which represented $50 per month for the five years immediately preceding the date of her application, less $25 per month for the last three months during which the son, who had attained the age of eighteen years, was in the United States Army. On September 8, 1945, the court entered an order that the plaintiff have judgment against the defendant for the sum of $2,925.
[3]In December, 1945, the defendant noticed a motion to vacate the order of September 8th on the ground that there had been a modification of the support order by the plaintiff’s oral agreement to accept $24 per month, and that the sums paid by him had been in full compliance with that agreement; also on the ground that the court had no jurisdiction to make the order without notice to him. Both parties appeared and offered evidence at the hearing on the motion. The court denied the motion and the appeal followed.
The defendant contends that the court had no jurisdiction without notice to determine the amount due and unpaid under the divorce decree which had been entered more than five years prior to the plaintiff’s application.
Being merely a subsequent step in the same divorce proceeding, the order did not amount to a new judgment (Doehla v. Phillips, 151 Cal. 488, 496 [91 P. 330]); although it did not expressly direct that execution issue, it was in effect such an order. It was not another judgment in the same (divorce) proceeding redetermining the award for child support, in which event it would be an unauthorized judgment. (Estate of Hultin, 29 Cal.2d 825 [178 P.2d 756].) It was an order determining the amount unpaid under an existing judgment for child support, and was treated by the parties and by the court on the motion to vacate as having the same effect as an order directing that execution issue. It was therefore controlled by the code provisions and decisions dealing with the question of when execution may issue.
Section 681 of the Code of Civil Procedure provides that a writ of execution may issue for the enforcement of a judgment at any time within five years after its entry.
It was in 1945, that the plaintiff sought enforcement of the final decree which was rendered in the divorce action in 1933. Her application was therefore filed more than eleven years after entry of the decree.
Section 685 of the Code of Civil Procedure applies generally in the case of the enforcement of a judgment more than five years after its entry. Prior to 1933, under that section the judgment might be carried into execution after the lapse of five years from its entry by leave of court on ex parte order. (Parker v. Parker, 203 Cal. 787, 793 [266 P. 283], and cases cited.) By amendment in that year (Stats. 1933, p. 2499), the requirement was added that the leave must be obtained upon motion “and after due notice to the judgment debtor [4]accompanied by an affidavit or affidavits setting forth the reasons for failure to proceed in compliance with the provisions of section 681 of this code. The failure to set forth such reasons as shall, in the discretion of the court, be sufficient, shall be ground for the denial of the motion.”
A decree awarding support, such as in this case, provides for amounts to become due at regular intervals in the future. It has been held that a party to a divorce action is entitled to execution as to unpaid installments of a support award on an ex parte application although the application be made more than five years after entry of the decree, provided the execution be restricted to unpaid amounts falling due within the five years immediately preceding the application (Lohman v. Lohman, 29 Cal.2d 144 [173 P.2d 657]; Castle v. Castle, 71 Cal.App.2d 323, 324 [102 P.2d 656]). In Da Arauje v. Rodrigues, 50 Cal.App.2d 425 [123 P.2d 154], it was pointed out that section 685 of the Code of Civil Procedure made provision for the enforcement, by motion and on notice, of a judgment which had been barred by the statute of limitations. The limitation statute has uniformly been deemed not to have run against unpaid installments under a judgment until five years after they have become due. (DeUprey v. DeUprey, 23 Cal. 352; Gaston v. Gaston, 114 Cal. 542 [46 P. 609, 55 Am.St.Rep. 786]; Shields v. Superior Court, 138 Cal.App. 151, 154 [31 P.2d 1045] ; Atkinson v. Atkinson, 35 Cal.App.2d 705, 707 [96 P.2d 824]; Cochrane v. Cochrane, 57 Cal.App.2d 937, 938 [135 P.2d 714] ; Castle v. Castle, supra, 71 Cal.App.2d at p. 324; see, also, Yager v. Yager, 7 Cal.2d 213, 218 [60 P.2d 422, 106 A.L.R. 664].) The fact that execution cannot issue against installments until they have become due establishes a basis for the conclusion that, either before or after the 1933 amendment of section 685, notice is not required as to installments which were due and unpaid within five years of the time of the application for execution.
The plaintiff sought no relief as to amounts which became due and remained unpaid during the period more than five years prior to her application. She designated those, amounts only which were due and unpaid during five years immediately preceding her application, and the order was similarly restricted. It follows, therefore, that the contention of the defendant that the court was without jurisdiction to enter the order except on notice cannot be sustained.
[5]There remains the question whether the court abused its discretion in denying the motion to vacate the order. By the denial of the motion it was impliedly found and concluded that there had been no modification of the support award by agreement or otherwise; that there was due from the defendant $2,925 as the amount unpaid for support during the five years immediately preceding the plaintiff’s application; and that there was no legal or equitable consideration which would bar execution thereon. The defendant urges that the record does not support the findings and conclusions. He asserts many facts which have no bearing on the present inquiry, although they might have been pertinent on a motion for a modification of the support award had such a motion been timely made. There is otherwise no question that the amount specified in the order was due and unpaid if the award was not modified by agreement of the plaintiff. The only evidence introduced by the defendant of such a modification was his testimony that the plaintiff, in a telephone conversation with him shortly after the entry of the interlocutory decree, agreed to take $24 per month instead of the $50 ordered by the court. The plaintiff’s testimony that no such agreement existed was supported by evidence from sources which may be said to have been independent. and disinterested. There is no contention or showing that the defendant’s payments for support were made in such installments and at such times as would evidence the existence of the alleged agreement. The record indicates that the court was justified in concluding that the defendant’s assertion of the agreement had no basis in fact.
An abuse of discretion must be affirmatively established. (Wilder v. Wilder, 214 Cal. 783, 785 [7 P.2d 1032].) The record fails to show such an abuse. Furthermore, the defendant had full opportunity to assert his position on the motion to vacate. (Doehla v. Phillips, supra, 151 Cal. at 495.)
The order is affirmed.
Gibson, C. J., Carter, J., and Traynor, J., concurred.